The Legal Status of In Vitro Fertilization in Latin America and the American Convention on Human Rights
29 Pages Posted: 13 Oct 2012 Last revised: 21 Oct 2014
Date Written: September 1, 2012
In Latin America, Costa Rica is the only country in the region that absolutely bans access to In Vitro Fertilization (IVF). In 2000, the Constitutional Chamber of the Supreme Court of Costa Rica, invoking article 4.1 of the American Convention on Human Rights, the fundamental legal document of the Inter-American system of human rights recognized the embryos’ right to life. The Constitutional Chamber held that given the great possibility that the embryos would be discarded, IVF should be completely prohibited insofar as it violates the right to life.
Recently, in the 2010 report “Gretel Artavia Murillo and others v. Costa Rica,” the Inter-American Commission of Human Rights (IACHR) concluded that completely prohibiting access to IVF in Costa Rica is incompatible with the ACHR. The commission ruled that the Costa Rica Constitutional Chamber’s decision to establish a total ban on access to IVF constitutes an arbitrary interference and is a restriction incompatible with the exercise of the rights of private and family life and the right to form a family — enshrined in articles 11 and 17 of the ACHR. It also held that impeding access to IVF is discriminatory since it constitutes a burden for a specific societal group: infertile women. Because Costa Rica had not complied with the IACHR recommendation to lift the ban on access to IVF, the Commission brought the case before the Inter-American Court of Human Rights, which is now ready to listen to the parties and resolve the controversy.
A propos the Commission’s report and as a prelude to the debate that will take place before the IACtHR, this paper analyzes the legal regimen on the process of IVF. In order to do so, it will critically evaluate the core of the IACHR report, and from this, determine the extent of the right to privacy and the right to life in these Latin American countries. This task is indispensable to observing whether the current legal status of IVF, in Costa Rica and other countries in the region, is consistent with the ACHR.
Keywords: American Convention on Human Rights, Costa Rica, IVF, Latin America
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